Per Shri Dhanraj Khamatkar, Hon’bel Member
This appeal takes an exception to an order dated 18/12/2007 passed by Addl. District Consumer Disputes Redressal Forum Pune in consumer complaint No.301/2006.
2. The facts leading to this appeal can be summerised as under :-
The complainant had booked a flat admeasuring 44.60 sq.mtrs. (480 sq.ft.) in ‘N’ building to be constructed by opponent No.2 in Survey No.82 Part 2/2, Village Dhanori, Pune vide agreement dated 03/12/2004. According to the terms of the agreement, consideration was `2,55,000/- and the possession was to be handed over within a period of 14 months. It is contended by the complainant/appellant that he has paid `45,000/- to opponent No.2. At the time of filing of the complaint, it is contended by the appellant/complainant that the work of the building was completed upto 25%. The complainant/appellant has filed a consumer complaint praying that opponent No.2 be ordered to handover possession of the flat by paying remaining amount.
3. The opponent contested the complaint stating that the agreement is terminated on 19/12/2004 as the housing society of which the complainant/appellant is a member has passed a Resolution to cancel the construction of the building No.‘N’ wherein the flat of the complainant is situated. He further contended that the complainant/appellant has no locus standi to file this consumer complaint. The opponent No.2 admitted the agreement dated 03/12/2004 and booking of the flat by the complainant/appellant. He further contended that the complainant has paid only `15,000/- and denied receipt of `18,350/- and `10,000/-. Opponent No.2 further contended that as per the terms of the agreement, the complainant had to pay `38,250/- within 15 days of the agreement. However, the complainant/appellant has paid `15,000/- only and balance amount of `23,250/- was outstanding. Opponent No.2 further contended that vide notice dated 19/12/2004, opponent No.2 had communicated to the complainant/appellant to pay remaining amount and failing which the agreement would stands terminated. As the complainant/appellant failed to pay the amount within prescribed time limit, the agreement stands terminated. Therefore, opponents requested that complaint be dismissed.
4. District Consumer Disputes Redressal Forum after taking into consideration the pleadings of both the parties and the evidence adduced has partly allowed the complaint and directed opponent Nos.2 &3 i.e. respondent Nos.2&3 to pay back the amount of `15,000/- along with interest @ 9% p.a. from 26/11/2004 and cost of `500/-. It is against this order that the present appeal is filed.
5. On the date of hearing, Advocate Mr.L.K Jadhav appeared as Proxy to Advocate Mr.Sant for the appellant/complainant and Advocate Mr.P.V. Deshmukh for the respondents. We heard both the Advocates and perused the record of the appeal and the order passed by the District Consumer Disputes Redressal Forum.
6. Admittedly, the appellant/complainant has booked a flat No.9 admeasuring 44.60 sq.mtrs. (480 sq.ft.) super built-up area in ‘N’ building for consideration of `2,55,000/- in the construction to be carried out by the respondents in Survey No.82 Part 2/2, Dhanori, Pune. This transaction is registered by agreement dated 03/12/2004. The agreement is between Lokshahir Anna Bhau Sathe Magasvargiya Sahakari Sanstha Maryadit, Dhanori, Pune through Chairman-Mr.Shivaji Kisan More and M/s.Sankalp Constructions through its Partners-respondent Nos.2&3, Appellant/complainant and M/s.Trinity Town Development and Finance Pvt. Ltd. Perusal of the agreement shows that total consideration of the flat is `2,55,000/- and the payment of schedule is as under :-
15% within 15 days of the agreement,
15% at the time of plinth,
10% at the time of first slab,
15% at the time of second slab &
15% at the time of third slab.
7. It is the contention of the appellant that he has paid `15,000/- on 26/11/2004 and this is admitted by the respondents. The complainant/appellant had paid `18,350/- on 19/09/2004 and `10,000/- on 25/07/2004. Respondents denied payments of these amounts. At page Nos.15&18, there are two receipts. In the first receipt, amount of `18,350/- is shown as paid and this receipt is issued on behalf of Sankalp Construction. Similarly, receipt of `10,000/- is produced by the complainant and the amount is accepted on behalf of Sankalp Construction. Mere denial of payment will not be sufficient to deny that respondents had not received the amount. The respondents had not produced affidavit of the persons issued receipts stating that they have not received the amount and they have not issued the receipts in respect of these payments. The balance of convenience is goes in favour of the appellant/complainant. We hold that respondents had received an amount of `43,350/-. The Society who has entered into an agreement with respondent Nos.1&2 is a Backward Class Housing Society and the Chairman of the Society is neither appeared before the District Consumer Disputes Redressal Forum nor appeared before this Commission in appeal and ultimately, his name was deleted.
8. The respondents by their letter dated 03/03/2004 written to the Chairman of Anna Bhau Sathe Magasvargiya Sahakari Gruha Nirman Sanstha, Dhanori, Pune that members of the ‘N’ building to be shifted to other building. It is not on record whether Chairman of the Society has accepted this letter and permitted to shift members of ‘N’ building to some other building. From this letter it is seen that respondents in collusion with Chairman of the Society unilaterally shifted members of the ‘N’ building to other Society. Again at page-16 of the compilation, there is a letter dated 19/12/2004 written by the respondent Nos.2&3 to the appellant/complainant stating that amount of `23,250/- is outstanding against the complainant and he has not paying any heed. Hence, within 15 days from the date of receipt of this notice, you are required to pay the outstanding amount; otherwise your booking will be cancelled. Copy of the said letter is forwarded to Secretary, Anna Bhau Sathe Magasvargiya Griha Nirman Sahakari Sanstha, Dhanori, Pune.
9. Considering this letter, as a termination notice, respondents are claiming that they have cancelled the agreement. By this letter, it is only intimated that the appellant/complainant should pay an amount of `23,250/- to Anna Bhau Sathe Magasvargiya Griha Nirman Sahakari Sanstha within a period of 15 days, otherwise, owing to default, agreement will be cancelled. Therefore, contingent to failure to make payment, the agreement will be terminated would not result into termination of the agreement. Except this document, there is no further act of termination of the contract.
10. In the agreement, payment schedule is given and except this letter there is no evidence to show that respondents had taken any steps to communicate to the appellant/complainant to pay amount of consideration. At page-19 of the appeal compilation, there is a letter issued by the Weizmann Homes Ltd. dated 18/11/2005. The letter is regarding loan application made to the Finance Company by the complainant. In the aforesaid letter, it is stated that, “we have in principle sanctioned the loan to you on the following broad terms and conditions, subject to legal and technical clearance in accordance with the rules of Weizmann Homes Ltd. The loan amount sanctioned was `2,40,400/-. One of the conditions is registered equitable mortgage of the property. When we asked Learned Counsel for the respondents about this letter, he stated that ‘N’ building wherein the flat is booked for the appellant/complainant has not been constructed because they have not received permission from the Pune Municipal Corporation. When the flat is booked by the registered agreement dated 03/12/2004 in the ‘N’ building which is not constructed, it shows the conduct of the respondents. Thus, respondents’ case is based on the termination of agreement and the agreement is not terminated. In fact, the appellant/complainant has booked a flat in ‘N’ building and said building is not constructed as the respondents have not got sanction from the Pune Municipal Corporation. Hence, though Financial Institution has granted a loan in principle, loan amount cannot be disbursed because building plan is not sanctioned.
11. Out of consideration amount, the appellant/complainant has paid amount of `43,350/-. As per the agreement, when the building is not constructed, the appellant/complainant is not at fault. Hence, deficiency on the part of respondents is proved. At the time of arguments, we have asked Learned Counsel for the respondents whether respondents are in a position to hand over possession of the flat as per agreed measurement, they have shown their inability because they have not constructed ‘N’ building. Under the circumstances, respondents are legally bound to hand over possession of the flat admeasuring 44.60 sq.mtrs. (480 sq.ft.) in other building after taking remaining amount of consideration. District Consumer Disputes Redressal Forum has not taken into consideration the fact that agreement is not legally terminated and apart from `15,000/-, appellant/complainant had paid an amount of `28,350/- and the building wherein the flat was to be given to the appellant/complainant has not been constructed and the Financial Institution has in principle granted loan to the appellant/complainant and arrived at erroneous conclusion which cannot be sustained in law. District Consumer Disputes Redressal Forum has failed to take into consideration the material facts and hence, there is no alternative but to set aside the order passed by the District Consumer Disputes Redressal Forum.
12. The flat is booked on 03/12/2004 and since then, rates of the property increased by 3-4 folds. The appellant/complainant has produced on record “Times of India”, Pune Edition dated 24/09/2011 wherein the market rate of the properties in Pune is given. In Dhanori, rate of property is `3,150/- to `3,450/- per sq.ft. Even if the minimum rate of the sale transaction in Dhanori is taken into consideration, the amount of 480 sq.ft. comes to `15,12,000/-. The deficiency in service on the part of respondents is established. Under the facts and circumstances of the case, the appellant/complainant is entitled for the flat admeasuring 44.60 sq.mtrs.(480 sq.ft.). In view of the aforesaid facts and circumstances, we allow the appeal and pass the following order :-
-: ORDER :-
1. Appeal is allowed. The impugned order dated 18/12/2007 is modified.
2. In place of order passed by District Consumer Forum, we direct respondent Nos.2&3 to hand over possession of the flat admeasuring 44.60 sq.mtrs. (480 sq.ft.) by accepting an amount of `2,11,650/- from the appellant/complainant.
ALTERNATIVELY
If respondent Nos.2&3 are not in a position to hand over possession of the flat, they should pay `15,12,000/- to the appellant/complainant within period of two months from the date of order. If the respondent Nos.2&3 fail to pay said amount, the amount shall carry interest @ 9% p.a. from the date of order till realisation of entire amount.
3. In the facts and circumstances of the case, no order as to costs.
4. Copies of the order be furnished to the parties.
Pronounced
Dated 18th October 2011.
